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2018 DIGILAW 81 (CAL)

Kantilal Bhanudas Dukare v. Union of India

2018-01-10

RAJASEKHAR MANTHA

body2018
JUDGMENT : 1. Affidavit-in-opposition and affidavit-in-reply filed in Court by the parties be kept with the record. 2. The writ petitioner was charge-sheeted for misconduct that was committed around 7th July, 2000. 3. The said charge-sheet resulted in an order of dismissal from service passed by the SSFC, that is Summary Security Force Court, under the BSF Act, 1968 and the applicable rules thereunder. 4. An appeal was preferred against the order passed by the SSFC before the IG, BSF, South Bengal, which was rejected vide order dated 22nd December, 2000. 5. The writ petitioner challenged the said order before the High Court of judicature at Bombay being W.P. No. 4127 of 2002. 6. The said writ petition was disposed of by the Bombay High Court in its order dated 16th July, 2010 inter alia directing the DIG, Sector Headquarter, BSF, Malda to consider the appeal of the writ petitioner afresh. The earlier order dated 22nd December, 2000 passed by the IG, BSF was set aside. 7. In the said order the Bombay High Court specifically directed the Appellate Authority to discuss the evidence on record and then to arrive at a conclusion whether the charges are held to be proved or otherwise and consequently whether order of the SSFC could be sustained. 8. The appeal was considered accordingly by the DIG, Sector Headquarters, BSF, Malda and disposed of by an order dated 29th October, 2010. The Appellate Authority reversed the order of dismissal from service passed by the SSFC. The punishment imposed on the petitioner was reduced to 89 days rigorous imprisonment in the force custody and to forfeit 5 years of service for the purpose of promotion. 9. It is submitted by the learned counsel appearing for the BSF authorities that the 89 days of rigorous imprisonment is merely on paper and has been deemed to have been undergone by the writ petitioner. The writ petitioner is stated to have joined to service on 20th November, 2010 without reserving any right to challenge the said order dated 29th October, 2010. 10. The writ petitioner’s service was regularized by order dated 18th June, 2011 whereupon the writ petitioner filed a second writ petition before the High Court of judicature at Bombay being W.P. No. 3609 of 2012, challenging the said order dated 29th October, 2010. 11. 10. The writ petitioner’s service was regularized by order dated 18th June, 2011 whereupon the writ petitioner filed a second writ petition before the High Court of judicature at Bombay being W.P. No. 3609 of 2012, challenging the said order dated 29th October, 2010. 11. The said second writ petition was disposed of as withdrawn on 27th June, 2012 by the Hon’ble Bombay High Court reserving liberty to the writ petitioner to move the Court of competent jurisdiction. Hence the instant writ petition came to be filed on 11th September, 2012. The principal argument of the BSF authorities is that of waiver acquiescence of estoppel. The learned counsel for the BSF contends that the writ petitioner must be deemed to have accepted the order dated 29th October, 2010 by reason of his rejoining service on 20th November, 2010 from service without any protect or demur. 12. It is further urged that a period of merely two years has elapsed since the passing of the order dated 29th October, 2010 and hence the writ petition is barred by delay and latches. 13. I have considered the rival submissions of the parties. I find that it is true that the petitioner has joined his service without protest and/or demur, on 20th November, 2010 in acceptance of the order dated 29th October, 2010. However the period of two years that has since elapsed after his joining has been explained, in the late fixation of his pay and consequential benefits in the order dated 18th June, 2011 passed by the authorities and thereafter the second writ petition being W.P. No. 3609 of 2012 filed before the Bombay High Court. The writ petition, therefore, may not fail on the ground of delay and latches or on the question of acquiescence. Further since the respondents otherwise desired that the writ petitioner should be reinstated albeit with a lesser punishment, the joining duty without protest may not be deemed to be a case of waiver of his rights to challenge the order dated 29th October, 2010. 14. In respect of the said order dated 29th October, 2010 itself being impugned in the instant proceedings I find that the DIG, BSF, Sector Headquarter, Malda has not followed the order passed by the Hon’ble Bombay High Court dated 16th July, 2010 in W.P. No. 4127 of 2002. There is no discussion of any evidence on record. 14. In respect of the said order dated 29th October, 2010 itself being impugned in the instant proceedings I find that the DIG, BSF, Sector Headquarter, Malda has not followed the order passed by the Hon’ble Bombay High Court dated 16th July, 2010 in W.P. No. 4127 of 2002. There is no discussion of any evidence on record. The reasons for differing with or imposing of a lesser punishing are not available in the said order. In fact no evidence was at all discussed except merely setting out the facts of the case. The writ petitioner contends that he should have been completely exonerated. 15. I am, therefore, of the view that the order dated 16th July, 2010 has not been complied with by the DIG, BSF, Sector Headquarter, Malda. 16. In those circumstances, the order dated 29th October, 2010 is hereby set aside. The statutory appeal is remanded back to the IG, BSF, South Bengal to be considered in accordance with law and in terms of the order dated 16th July, 2010 passed by the Hon’ble High Court at Bombay in W.P. No.4127 of 2002. The said order must be followed in letter and spirit. The writ petitioner shall be heard in person by the said IG, BSF, South Bengal prior to disposal of the appeal. The IG, BSF, South Bengal shall pass a detailed and reasoned order. The said order may be passed within a period of three months from the date of communication of a copy of this order. The writ petitioner having joined service shall continue as such. The writ petitioner’s continuation of service shall abide by the result of the order that may be passed by the IG, BSF, South Bengal as above. The order of dismissal passed by the SSFC against the writ petitioner shall be kept in abeyance until disposal of the appeal by the IG, BSF, South Bengal as above. 17. It is submitted that in terms of the BSF Act, 1968 and BSF Rules 1969 the records may have been destroyed. The respondent authorities including the IG, BSF, South Bengal may rely upon the secondary evidence and/or the documents annexed to the instant writ petition and the other pleadings in the instant proceedings and/or those in the first and second writ petition before the Bombay High Court. WP 20532(W) of 2012 is, hereby disposed of. 18. The respondent authorities including the IG, BSF, South Bengal may rely upon the secondary evidence and/or the documents annexed to the instant writ petition and the other pleadings in the instant proceedings and/or those in the first and second writ petition before the Bombay High Court. WP 20532(W) of 2012 is, hereby disposed of. 18. There shall be no order as to costs. 19. Urgent certified website copy of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.